Denver Law Review Volume 89 Issue 1 Article 3 December 2020 The Affective Blindness of Evidence Law Teneille R. Brown Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Teneille R. Brown, The Affective Blindness of Evidence Law, 89 Denv. U. L. Rev. 47 (2011). This Article is brought to you for free and open access by Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. THE AFFECTIVE BLINDNESS OF EVIDENCE LAW TENEILLE R. BROWNt INTRODUCTION Evidentiary rules and practices reveal a folk psychological view of emotion, placing it at odds with reason. Specifically, many substantive and procedural rules of evidence explicitly require jurors to turn off their emotions in favor of rational, so-called "top-down," executive thinking. In order to make the point that this dichotomy between emotion and rea- son is simultaneously reflected in our evidence law and also empirically wrong, I will address how emotion is treated in (a) the use of limiting instructions, (b) the exclusion of prejudicial evidence, (c) credibility as- sessments, (d) sentencing and damages instructions, (e) instructions re- lated to the "heat of passion" theory of voluntary manslaughter, and (f) the excited utterance hearsay exception. In each case I will demonstrate that while the text of the rules may be benign, the way they are interpret- ed reflects confusion over the role played by both subtle and intense emotion. Specifically, the rules listed above evince one of five related errors: * Emotional and rational processes can neatly be divided, and by attending to our emotions, we can-and should-use our cognitive facul- ties to squash them. * Emotional evidence and emotional processes always render deci- sions that are less rational, more prejudicial, and therefore less accurate. * Emotion testimony distracts us and makes it hard for us to pay at- tention or remember events. * Credibility assessments do not require empathy. * Emotion should not and cannot be involved in moral judgment and reasoning related to sentencing. Perhaps more strikingly, encouraging jurors to use their reasoning to quiet their emotions espouses a view of the juror as aspiring toward psychopathy. Psychopathy is a clinical personality disorder. It is diag- nosed through an individual's rating on a set of emotional and social t Teneille R. Brown is an Associate Professor of Law at S.J. Quinney College of Law at the University of Utah. She is also an adjunct professor of Internal Medicine, teaching for the Division of Medical Ethics. Earlier versions of this work were presented to the Legal Decision-Making net- work for the Macarther Law and Neuroscience Project. Special thanks to Owen Jones for encourag- ing this paper, and to Hank Greely, Emily Murphy, and the students in Stanford Law School's Law and Biosciences workshop in spring 2011 for their helpful feedback. Finally, this Article benefited tremendously by a very thoughtful and careful review by Leslie Francis and Daniel Medwed. 47 48 DENVER UNIVERSITY LAWREVIEW [Vol. 89:1 criteria. As data reveal that not all psychopaths are violent, it appears that the hallmark traits include the ability to feel little remorse or empa- thy, and possessing very shallow affect. Psychopaths may be uniquely able to divorce their reasons from feelings of sadness, shame or guilt. So they may defy the label of the false dichotomy. Even so, this is surely not the ideal we aspire to for the modem American juror. While emotions such as anger might prejudice our judgment, the failure to differentiate between various emotional (affective) processes and their impact on decisions reflects a view that is woefully out of step with our current understanding of emotion and the brain. Emotions may distract us in some situations and help us focus in others. This may have to do with the emotion itself and its impact on our perception, attention, memory or reasoning. Or it may have to do with the emotion's duration or the social context in which we find ourselves. Contrary to the skeptical view espoused by some of our greatest ev- idence scholars, emotion is not universally corrupting, nor is it always at odds with reason. Emotion is context-specific and non-linear, and it op- erates at varying levels of consciousness and subtlety.' Further, the cog- nitive sciences demonstrate that affect and reason are anatomically inter- connected and functionally interdependent. In this Article, I hope to demonstrate that, at the neuronal and the social level, the false dichotomy between emotion and reason falls apart. It has persisted in part because anatomically incorrect metaphors are deeply embedded in our cultural history-that we think with our brain and feel with our heart. This blindness to emotion has deep roots in our common law, and traces back to the very beginning of jury trials. While civil juries existed for property disputes and the like, throughout medieval times it was often the clergy who determined whether an accused was guilty or innocent through a subjective process known as "the ordeal." As one example, the "cold water ordeal" involved the defendant being dumped in a large pool 1. See Ben Seymour & Ray Dolan, Emotion, Decision Making, and the Amygdala, 58 NEURON 662, 662 (2008) ("The resulting decision phenotype is typically emotional but arises from underlying processes that are generally rational and whose effects might often only become apparent in instances when they cause deviations from rationality.") (emphasis added); Adam L. Darlow & Steven A. Sloman, Two Systems of Reasoning: Architecture and Relation to Emotion, I WIRES COGNITIVE SC. 382, 383 (2010); Ap Dijksterhuis, Think Different: The Merits of Unconscious Thought in Preference Development and Decision Making, 87 J. PERSONALITY & SOC. PSYCHOL. 586, 586 (2004) ("[W]hether what we may call 'unconscious thought' contributes to good decisions is also not clear."); see generally Timothy D. Wilson et al., Introspecting About Reasons Can Re- duce Post-Choice Satisfaction, 19 PERSONALITY & Soc. PSYCH. BULL. 331 (1993) (arguing that a consumer's introspection about his or her choice will eventually cause dissatisfaction with that choice). Psychological level embraces many processes (not just two) and at the neural level, these processes are multiplied by a factor of 10 to the 16th. See Mark Lubell et al., Institutional Design Capitalizing on the Intuitive Nature of Decision Making, in BETTER THAN CONSCIOUS?: DECISION MAKING, THE HUMAN MIND, AND IMPLICATIONS FOR INSTITUTIONS 413, 417 (Christoph Engel & Wolf Singer eds., 2008) ("[I]nstitutional-level approaches that embrace a binary distinction between rational or conscious cognitive processes and the irrational or unconscious cognitive process will necessarily miss the mark in terms of their value to accurate fact-finding."). 2011] THE AFFECTIVE BLINDNESS OF EVIDENCE LAW 49 with a rope tied around his hips. If he sank, he was saved as innocent, "for the purity of the water had accepted him," but if he managed to float, he was condemned as guilty. 2 The priest overseeing the ordeal was thought to channel the judgment of God, or judicium Dei. In 1215 the Fourth Lateran Council of the Christian Church prohibited clergy from 3 presiding over the ordeal, thus delegitimizing the once divine process. When the process lost its ecclesiastical imprimatur, "it drew the ground from under that method of trial."A Courts needed a substitute for the clergy. The lay jury answered this call, with common citizens in some cases rendering final judgments.5 To make this radical shift, it was felt that rules must be put in place to tem- per the power of uneducated lay jurors. This "reining in" of the jury was habitually described in terms of quieting their ignorant emotional pas- sions. Much of the subsequent development in evidence law continued in this vein of accepting that it was jurors' emotions that needed silencing. This Article hopes to shatter this deep-seated but folk psychological view of emotion as pedestrian or corrupting. While this Article is not meant to disrupt the preference for reason- able arguments and outcomes over unreasonable and intuitive ones, it argues that emotions are often necessary for reasoning. This may be par- ticularly true in social interactions, where we attend to many stimuli and digest bundles of non-verbal cues. Of course, in other situations, we give emotion too much credit to improve our credibility, where emotions ac- tually obscure our memory or our perception of others. Rather than draw- ing bright policy lines as to when emotions ought to be relied upon, this Article will take existing rules and practices and unpack the flimsy folk 2. George Fisher, The Jury's Rise as Lie Detector, 107 YALE L.J. 575, 585 (1997). Another type of ordeal involved burning the accused's hand with hot coals, and then binding the hand with cloth. When the cloth was removed three days later, a priest would examine the burned skin and pray to God before the accused to render his judgment. If the skin had begun to heal, the accused would be acquitted, if it had worsened, the accused was guilty and punished. Thomas P. Gallanis, Reasona- ble Doubt and the History of the Criminal Trial, 76 U. CHI. L. REV. 941, 945 (2009) [hereinafter Gallanis, Reasonable Doubt] (citing Thomas P. Gallanis, Ordeal in English Common Law, in THE OXFORD INTERNATIONAL ENCYCLOPEDIA OF LEGAL HISTORY (Stanley N. Katz, ed., 2009)). 3. JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 37 (Boston, Little, Brown & Co. 1898); JOHN HENRY WIGMORE, A TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS IN COMMON LAW, INCLUDING THE STATUTES AND JUDICIAL DECISIONS OF ALL JURISDICTIONS OF THE UNITED STATES 3073 (Boston, Little, Brown & Co.